Select Committee on European Union Twelfth Report

Letter from Kate Hoey MP to Lord Tordoff

  Thank you for your letter of 4 March. You will now have received my substantive reply of 3 March to your letter of 3 December about the interception provisions in the Convention. I deal below with the other matters which you have now raised.


  The Government takes the view that Article 9(9) provides adequate safeguards for the protection of the rights of the accused, the most important of which is that the hearing of an accused person would not take place without the accused person's consent. The provision is also entirely permissive in nature, allowing for Member States to apply it "at their discretion" and "where appropriate". The manner in which the hearing would be carried out would also be subject to the agreement of the Member States concerned. There would therefore be no obligation to hold such a hearing and we would judge each request on its individual merits. For these reasons the Government does not see that there is a need for the Council to adopt legally binding rules and, indeed, the footnotes to Article 9(9) explain that it will be stated in the explanatory report "that the use of video conference will be allowed for accused persons even prior to the possible adoption by the Council of a legally binding instrument for the protection of the rights of accused persons". The Government would of course give full and careful consideration to any proposals for such an instrument which may be made in due course.

  The Convention does not define an "accused person" and the term may therefore have different meanings in different Member States. But a principal purpose of the Convention is to enhance co-operation and remove obstacles to obtaining and providing assistance. We believe that Member States would interpret the term flexibly. We ourselves would interpret it to include not only a person who has been charged with an offence but also an individual who is suspected of an offence at the preliminary, pre-trial, stage of an investigation. The Government envisages that pre-trial suspects are more likely than charged persons to wish to participate voluntarily in hearings by video conference. In particular, a suspect might be able quickly and conveniently to eliminate himself from the enquiry.

  The Government is still considering whether opting-out of Article 9(9) would, or would not, be appropriate. Parliament will be informed of the decision which is taken and of any subsequent change to the decision.


  You note that requests for hearings by telephone conference are subject to the "fundamental principles of law" of the requested State and ask how that can be reconciled with the proposal that such a hearing should be supervised by a police, rather than a judicial, authority in the UK.

  The reference in the proposed Article XX to the "fundamental principles of law" relates to the question whether or not the requested Member State should provide the assistance sought. That decision is one which the Government contemplates would be made by or on behalf of the Secretary of State or, in Scotland, the Lord Advocate, in the particular circumstances of the individual request. Once a decision had been made to agree to the request, the provision of the assistance would essentially be a matter of implementing the purely practical arrangements agreed between the UK and the other Member State concerned. The police officer would not himself have to deal with questions of law, but would simply be required to: identify the person to be heard eg by production of a passport; ensure that he was co-operating on a voluntary basis; and provide a telephone line to the authority in the requesting Member State.


  Under cover of a letter of 9 March to Jimmy Hood MP, Chairman of the European Scrutiny Committee, into which you were copied, I explained that the Government is now negotiating on the basis that we can accept the principle of including in the Convention an Article granting the ECJ jurisdiction equivalent to that which it would have were the Convention to be adopted on the basis of the Amsterdam Treaty.

  You ask about the criteria which the Government has in mind in deciding whether or not to make the Declaration provided for under Article 35(2) of the revised Treaty on European Union, which would accept the jurisdiction of the ECJ to give preliminary rulings in respect of the legal instruments identified in the Treaty and their implementing measures.

  The Government takes the view that, given the once and for all nature of such a declaration, making it could give rise to significant difficulties of both principle and practice. Once made, such a declaration would amount to a "blank cheque" as it is not possible to predict what Third Pillar measures will in future be brought forward and what the possible advantages and disadvantages of ECJ preliminary rulings jurisdiction would be with regard to those measures. The Government would certainly not wish, for example, to be placed in the position of having to obstruct a draft instrument, which in every other respect was acceptable, solely because in the particular circumstances of the case preliminary rulings jurisdiction by the ECJ would be problematic.

  It should also be borne in mind that the Treaty of Amsterdam extends ECJ preliminary rulings jurisdiction to implementing measures which, under the voting arrangements provided for in the new Article 34, could be agreed against the wishes of perhaps as many as a third of the Member States. Such implementing measures could relate to quite sensitive issues and Member States might therefore be faced with having to give them legal effect, without any clear idea of how the ECJ might choose to interpret them. For all these reasons, the Government does not intend to make a declaration under Article 35 of the TEU when the Amsterdam Treaty enters into force, though it will keep the matter under review.

  The Government fully recognises that, as far are possible, EU legislation should be interpreted and applied consistently in all Member States, and that the ECJ provides a means by which this can be achieved. However it should be borne in mind that since none of the instruments provided for under either the Maastricht or Amsterdam Treaty has direct effect, the need for ECJ oversight of Member State compliance and consistency of implementation is reduced. Moreover, the Government also believes that, subject to an oversight by the national courts, there must be a degree of national discretion in implementation of Third Pillar measures. This is recognised by the provisions of the Amsterdam Treaty relating to framework decisions, which leave to Member States flexibility over implementation. Where a conflict does arise between Member States as to the interpretation of a particular instrument, Article 35(7) of the revised TEU, in the Government's view, provides the correct approach, in that it allows the Council a period of up to six months to resolve the dispute at a political level before it is referred to the ECJ for a ruling.

  I shall of course submit for scrutiny any further proposals on the Convention in the usual way and provide the Committee with a revised consolidated text of the Convention as soon as it is available.

  I am sending a copy of this letter to Lord Hoffmann, Chairman of Sub-Committee E, Jimmy Hood, Chris Mullin and Joyce Quin.

22 March 1999

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